Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wulf v. Bravo Brio Restaurant Group, Inc.

Court of Appeals of Ohio, Twelfth District, Butler

August 26, 2019

WILLIAM WULF, EXECUTOR OF THE ESTATE OF ROLAND WULF, Appellant,
v.
BRAVO BRIO RESTAURANT GROUP, INC., et al., Appellees.

          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2017-03-0719

          DuPont & Blumenstiel, LLC, Braden A. Blumenstiel, for appellant

          Reminger Co., L.P.A., Robert W. Hojnoski, for appellees

          OPINION

          M. POWELL, J.

         {¶ 1} Appellant, William Wulf, appeals a decision of the Butler County Court of Common Pleas granting summary judgment to appellee, Bravo Brio Restaurant Group, Inc.

         {¶ 2} On January 2, 2016, 89-year-old Roland Wulf went to dinner at Bravo Cucina Italiana in West Chester, Ohio. Wulf was joined by his girlfriend, Mary Lou Caruso, his daughter, Patricia Young, and his son-in-law, James Young ("Young").

         {¶ 3} At some point during the evening, Wulf excused himself to go to the restroom. Wulf walked to the restroom through an aisle that had dining booths on one side and the kitchen food counter on the other side. As Wulf was passing between the kitchen food counter and the dining booths, either on his way to the restroom or returning to his table afterwards, someone suddenly backed away and bumped into him, hitting his left leg. Wulf lost his balance, fell to the floor, and fractured a hip. None of Wulf s dinner companions witnessed the incident.

         {¶ 4} On March 31, 2017, Wulf filed a complaint against Bravo Brio and several John Does, including an unknown waitress whom Wulf claimed was the person who bumped into him, causing him to fall. The complaint alleged that Wulfs injuries were the result of the negligence of the Bravo waitress and that Bravo Brio was liable under the doctrine of respondeat superior. Wulf was deposed on November 10, 2017. He passed away in February 2018. His son, William Wulf, as the executor of the estate, was substituted as plaintiff and proceeded with the lawsuit (the plaintiff in the litigation, appellant herein, and the victim, Roland Wulf, shall be referred to as Wulf).

         {¶ 5} Bravo Brio moved for summary judgment. Attached to the motion was Wulfs deposition. Wulf filed a memorandum opposing summary judgment, supported in part with affidavits from Wulf, Caruso, and Young.

         {¶ 6} Wulf averred in his October 31, 2016 affidavit that his fall was caused when a waitress holding a food tray suddenly backed away from a booth on his left without looking and bumped into him. The affidavit states that Wulf was on his way to the restroom when the incident occurred. Wulfs affidavit further states that (1) a female patron witnessed the incident and told Wulfs daughter that the incident was caused when a waitress backed away from a booth without looking, (2) shortly after the incident, a waitress admitted to Young that she had bumped into Wulf, and (3) the waitress apologized several times to Caruso and Young.

         {¶ 7} In his November 10, 2017 deposition, Wulf testified that his fall was caused when someone wearing a Bravo uniform backed into him, knocking him to the floor. The waitress then admitted working for the restaurant and apologized to Wulf, saying "she was sorry it happened" and "she was sorry she did this." Wulf testified, "I knew that they did it, but I couldn't prove it, basically, because I didn't see her do it. * * * [I]f I would have seen her coming, I could have pushed her, but I didn't." Wulf testified the waitress was wearing a Bravo uniform, was in her 20s, was 5' 6'' tall and pretty slender, had brown hair, and was not wearing glasses. Wulf was not sure whether he was going to or returning from the restroom when the incident occurred. He was, however, certain that the waitress was to his left when she backed into him.

         {¶ 8} When asked to describe how the incident occurred, Wulf testified several times that (1) as he was walking, he noticed servers standing at the kitchen food counter to his left, (2) as he was about a foot away from the servers, a waitress suddenly backed away from the kitchen food counter and bumped into him, and (3) he was looking ahead and did not see her coming. Wulf testified that had he seen her coming, the accident would not have had happened because he would have pushed her out of the way. Asked whether the waitress "was merely trying to back up, and as she was backing up, you just happened to be literally right behind her as you were walking past her; is that right?" Wulf replied "Yeah." Wulf denied the fall was caused by his age. Rather, Wulf stated it must have been a server because "they was [sic] the only people up there that could have done anything[, ]" and "she must have just turned quickly because I didn't even see her."

         {¶ 9} In her January 9, 2017 affidavit, Caruso averred that after she arrived at the accident location, a female patron told her she had witnessed "the whole accident." The affidavit did not detail what the patron had witnessed. The affidavit further averred that a Bravo waitress apologized to Caruso for causing the accident.

         {¶ 10} In his December 7, 2016 affidavit, Young averred that a Bravo waitress approached him and told him several times, "I'm so sorry." The affidavit further averred that Young overheard a female patron stating "she had seen the accident, and that a female Bravo waitress had caused the accident by bumping into [Wulf]."

         {¶ 11} On December 3, 2018, the trial court granted summary judgment to Bravo Brio, finding that Wulf was unable to prove negligence. The trial court noted that Wulf s deposition and affidavit were inconsistent, contradictory, and unclear as to what occurred. The trial court further noted that Wulf s knowledge of the incident was based upon hearsay statements from an unidentified waitress and an unidentified female patron, as he never saw what happened and did not see the waitress cause the incident. The trial court concluded,

[T]he Court is faced with a set of facts which provide that an unidentified employee of Defendant caused Wulf to fall, resulting in a broken hip. The testimony provides that Wulf himself is unclear as to what, or how, his fall occurred other than what he was told by this unidentified employee. His testimony is bolstered by his relatives and girlfriend in their individual affidavits, but again, the alleged tortfeasor is not identified, nor are any alleged witnesses.

         {¶ 12} Wulf now appeals, raising six assignments of error. For ease of analysis, we will address Wulf s second assignment of error out of order.

         {¶ 13} Wulf generally argues the trial court erred in granting summary judgment to Bravo Brio because when construing all of the evidence most strongly in favor of Wulf, as required by Civ.R. 56, there is a genuine issue of material fact as to whether Wulf s fall and injuries were caused by the negligence of the waitress employed by Bravo Brio, and thus, whether Bravo Brio was liable under the doctrine of respondeat superior.

         {¶ 14} In response, Bravo Brio generally argues that Wulf failed to show there is a genuine issue of material fact as to whether Bravo Brio owed or breached a duty of care to Wulf because the open and obvious doctrine bars Wulfs claim. Bravo Brio further argues that Wulf assumed the risk of injury by walking closely behind the group of servers standing near the kitchen food counter.

         {¶ 15} An appellate court reviews a trial court's decision on a motion for summary judgment de novo, independently, and without deference to the decision of the trial court. Flagstar Bank, FSB v. Sellers, 12th Dist. Butler No. CA2009-11 -287, 2010-Ohio-3951, ¶ 7. Summary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10.

         {¶ 16} The moving party bears the initial burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once this burden is met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is some genuine issue of material fact yet remaining for the trial court to resolve. Id. In determining whether a genuine issue of material fact exists, the court must answer the following inquiry: "Does the evidence present a sufficient disagreement to require submission to a jury or is it so onesided that one party must prevail as a matter of law?" Wilson v. Maple, 12th Dist. Clermont No. CA2005-08-075, 2006-Ohio-3536, ¶ 18.

         {¶ 17} "Before ruling on a motion for summary judgment, the trial court's obligation is to read the evidence most favorably for the nonmoving party to see if there is a 'genuine issue of material fact' to be resolved." Byrd, 2006-Ohio-3455 at ¶ 12. "Only if there is none does the court then decide whether the movant deserves judgment as a matter of law." Id. "[O]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

         {¶ 18} Before we address Wulf's assignments of error, we summarily dispose of the parties' following arguments.

         {¶ 19} Wulf argues the trial court erred in granting summary judgment to Bravo Brio because the court admitted in its December 3, 2018 decision and entry that "an employee of Defendant caused Wulf to fall, resulting in a broken hip." Wulf asserts that "[t]he trial court's admission, in and of itself, demonstrates the existence of a genuine issue of material fact[.]" Viewed in the context of the trial court's grant of summary judgment to Bravo ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.